On what basis did the labour appeal court recently, in SA Teachers Union obo Kruger v Gauteng Department of Education and Others (2021) 32 SALLR 12 (LAC); (2021) 42 ILJ 827 (LAC), determine that the remedies of compensation and reinstatement cannot be granted simultaneously?
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The principles identified by the court entail, amongst others, the following:
in the case of a dismissal for misconduct or incapacity: being substantively or substantively and procedurally unfair
- the primary relief is reinstatement or re-employment
- the employee is to resume employment on the same terms and conditions as at the date of dismissal
- the extent of retrospectivity is dependent on the discretion to be exercised by the arbitrator – the only limitation on such discretion is that it cannot be fixed earlier than the actual date of dismissal
- compensation is an alternative relief to the primary relief and is mutually exclusive to the remedies of reinstatement/re-employment
dismissal for operational requirements/automatically unfair: substantively or substantively and procedurally unfair
- the same principles as set out above apply here subject to s193(3) of the LRA – in addition, any other order may be made as considered to be appropriate
dismissal for misconduct/incapacity/operational requirements/automatically unfair: procedurally only unfair
- in terms of s193(2)(d) of the LRA, no reinstatement/re-employment is applicable but only compensation
